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Peter Welte: Alternatives to dispute resolution provide options

It's the end of the calendar year, which means decision-making time for farmers and businesses that work with farmers. Although 2015 was generally a decent year for crop yields, it was a poor year for revenue, since commodity prices are so much l...

Peter Welte

It’s the end of the calendar year, which means decision-making time for farmers and businesses that work with farmers. 

Although 2015 was generally a decent year for crop yields, it was a poor year for revenue, since commodity prices are so much lower than years before. Clearly, something has to give.
This means farmers might not be able to pay all their bills, which means businesses might have to take action to collect their bills. It also means lending institutions might need to take measures to protect themselves if they have borrowers who aren’t going to be able to make their payments.
This means more business for lawyers and the courts.
The courts are already flooded with pending litigation. And many farmers and ag-related businesses don’t have time for a full-blown civil lawsuit to make its way through the court system.
Fortunately, in North Dakota there are “alternative dispute resolution” options that are available for parties that otherwise might find themselves suing each other to resolve a dispute.
North Dakota has adopted the Uniform Arbitration Act, in North Dakota Century Code Chapter 32-29.3. Some contracts have agreements built in that require arbitration if a dispute arises between the parties in the contract. The Uniform Arbitration Act in North Dakota generally applies to any agreement to arbitrate made after July 31, 2005.
A person initiates an arbitration proceeding by giving notice to the other parties in an agreement. Certified or registered mail is a permissible way to do so, but civil service by a process server is another way to effectuate service on the parties. If the parties have an agreement to arbitrate, the agreement is generally nonwaivable, and avoidance of service of process is impermissible.
Once the proceeding has begun, an arbitrator is either appointed or agreed upon by the parties. The arbitrator has authority to conduct a hearing in such a manner as they consider appropriate for a fair and expeditious disposition of the proceeding. By law, the parties may be represented by a lawyer, although not all parties choose to do so.
The arbitrator has authority to hear and decide the case, just as a judge and jury would do. After arbitration is concluded, there generally is a right to appeal the matter to a court. So, even though the arbitration might be a quicker way of resolving a dispute, both parties are protected by the right to appeal almost any decision made by the arbitrator.
A similar, but different, section of law provides for mediation and credit assistance through North Dakota Administrative Code Title 18.5, titled Mediation and Credit Assistance. Under this section of law, both formal mediation and informal mediation is permissible.
Formal mediation is defined as “the process of formal meetings between a farmer and another person, initiated by the request of either the farmer or another person. Formal mediation meetings must be held with the objective of obtaining a voluntary settlement of the farmer’s problems and providing for the future conduct of financial relations between the parties.
Informal mediation, on the other hand, means “the process of assisting a farmer to obtain settlement.” In that instance, an appointee of the North Dakota agriculture commissioner assigns a negotiator to assist an eligible farmer in informal mediation. This program is administered by the North Dakota ag mediation service.
There are many other alternatives to going to court. Farmers who need help this winter have many options, and they shouldn’t be shy about seeking counsel to assist them through this legal maze.
Editor’s note: Welte is an attorney with the Vogel Law Firm in Grand Forks, N.D., and a small grains farmer in Grand Forks County.

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